Jimmy Cato,*Fn1 A/K/A Jimmie Cato v. Richard Ives

Jimmy Cato, a/k/a Jimmie Cato, is an inmate confined in the United States Penitentiary-McCreary in Pine Knot, Kentucky. Proceeding without an attorney, Cato has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging a prison disciplinary conviction and the resulting sanctions. [R. 1] Cato has paid the $5.00 filing fee.

In March 2011, while confined in the Federal Correctional Institution ("FCI")-Three Rivers in Three Rivers, Texas, Cato was charged with introducing narcotics into the prison, a serious prison disciplinary infraction. The hearing officer found Cato guilty of the charged offense and imposed various sanctions, including the forfeiture of forty days of Cato's good-time credits (GTC). Cato alleges that his due process rights guaranteed under the Fifth Amendment of the United States were violated both before and during the disciplinary hearing. Cato seeks the reinstatement of his forfeited GTC.

The Court conducts an initial review of habeas corpus petitions. 28 U.S.C. § 2243; Alexander v. Northern Bureau of Prisons, 419 F. App'x 544, 545 (6th Cir. 2011). The Court must deny the petition "if it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief." Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts (applicable to § 2241 petitions under Rule 1(b)). The Court evaluates Cato's petition under a more lenient standard because he is not represented by an attorney. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir. 2003). At this stage, the Court accepts Cato's factual allegations as true, and construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555-56 (2007).

Having reviewed the petition, the Court must deny it. Cato has not established that his constitutional rights were violated during the disciplinary process.

I

On March 2, 2011, "R." Webster, a Special Investigative Supervisor at FCI-Three Rivers, issued an Incident Report charging Cato with violating Bureau of Prisons ("BOP") Code No. 111A, Introduction of Narcotics. [R. 4-1, p. 1] Webster alleged that a prison Correctional Systems Officer had notified him that inmate Jamie Cormier, who was being released from the prison to a Community Corrections Management Office ("CCMO") in Beaumont, Texas, had a letter in his possession addressed to "Michelle, 5218 Browncroft, Houston TX 77021." The letter did not have a return address, but three facts supported Webster's belief that Cato wrote the letter to Michelle Pierson: (1) Pierson's address was "5218 Browncroft, Houston, Texas," (2) Pierson was listed in the prison's records as a person with whom Cato had exchanged e-mail correspondence, and (3) comparisons of the letter with other letters taken from Cato's property confirmed that Cato had in fact written the letter to Pierson. [Id.]

Webster alleged that Cato used "coded and conspiratorial language" directing Pierson to introduce narcotics into the institution during the Parenting Day visit at the end of March 2011. [Id.] Webster claimed that Cato wrote that he had paid a girl in Austin $250 for an ounce of marijuana that he was trying to get in the prison; that during the next Parenting Day visit, Pierson was to smuggle the marijuana into the prison by hiding it in her shoe and underwear; that once she was inside the prison, she was to remove the drugs from her person, place them in corn nut and popcorn bags, and leave the bags in the visiting room; and that a "homeboy" who cleaned the visiting room would bring the bags to him. [Id.] Webster alleged that Cato's letter also said that Pierson could "pass one or two to him [Cato] by mouth." [Id.]

On March 24, 2011, Disciplinary Hearing Officer ("DHO") "C." Bickle presided over the hearing at FCI-Three Rivers. Cato appeared at the hearing, waived his right to a staff representative but declined to initial the Form BP-S294, denied the charge, and disclaimed any knowledge of the letter obtained from Cormier. [R. 4-1, pp. 2-3] An inmate at FCI-Three Rivers, identified as "Srader," testified at the hearing, and Bickle summarized Srader's testimony as follows: '"[Srader] had heard that Cato and Cormier were not getting along and when Cormier got out he was going to f*** him over. He also stated that Cormier and other inmates in the unit were not getting along.'" [Id., p. 3, ¶ 2]

Section 2 of the DHO Report lists four witnesses who were "called as witnesses at this hearing and appeared." [R. 4-1, p. 3] However, from the information provided in Section 2, it appears that besides Cato, only Inmate Srader actually appeared and testified at the hearing. Two other inmates are listed as witnesses-Inmates Johnson and Burley-in Section 2 but it appears they testified via recorded statement. [R. 4-1, p. 3, § 2] Section 4 of the DHO's Report supports this conclusion.

That section required the DHO to (a) list persons who had been requested as witnesses but who were not called, and (b) explain why the requested witnesses were not called.*fn2 DHO Bickle listed FCI-Three Rivers inmates (Whitley, Johnson, and Burley) and former Inmate Jamie Cormier. It is unclear from the DHO Report who requested Whitley, Johnson, and Burley to appear at the hearing, but Cato made a statement during the administrative remedy process which suggests that the DHO called them as witnesses, not him.*fn3

Whitley, Johnson, and Burley's statements were presented to the DHO based on interviews an Investigative Lieutenant had conducted. [R. 4-1, p. 3, § 4] Summaries of the statements were included in the DHO Report:

(1) Inmate Whitley said that Cato did not have a problem with Cormier, who had been Cato's former cellmate; Cato and Cormier were getting along when Cormier left prison on March 2, 2011; and Cormier gave Cato his radio when he left.

(2) Inmate Johnson said that Cato and Cormier were getting along the night before and the day on which Cormier was released; that Johnson had heard nothing to indicate that Cormier was upset with Cato; that inmates often "haze" an inmate who is going to be released by throwing water on him or pushing him, but that Cato did not participate in any of the mild hazing activities involving Cormier.

(3) Inmate Burley said that Cato and Cormier were good friends and got along like brothers; that they hugged each other just before Cormier left theprison on March 2, 2011; and that "Inmate Cormier was involved with hazing last night but he laughed at it and appeared to take it well, it was just horseplay." [Id.] The DHO also stated that he conducted a phone interview with Cormier, who at that time was confined in the Liberty County Jail. [Id.] Cormier told him that he did not "set up" Cato and that he had no ...

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